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Friday, June 10, 2011


by Joe Pace, Featured Guest Blogger

If you told a lay person, unburdened by a law degree, that government officials could—without fear of legal consequence—scoop a law-abiding citizen off the streets without an iota of suspicion that they committed a crime, toss them into a high-security cell for two weeks, and subject them to daily humiliations like shackling and body-cavity searches, I suspect most people would be shocked. So the Supreme Court’s decision last week in Ashcroft v. al-Kidd—which held that former Attorney General John Ashcroft (pictured below) could not be sued for doing precisely that—makes for an edifying read.

The facts of the case are startling. It is well-documented that in the aftermath of 9/11, the Ashcroft-run Department of Justice misused the material witness statute to round up hundreds, if not thousands, of people, mostly Muslims and people of Arab descent. The material witness statute allows the government to detain someone who isn’t suspected of committing a crime upon a showing that a) the individual has information material to a criminal proceeding, and b) it is impracticable to secure the person’s testimony through subpoena. The statute makes clear: unless a “failure of justice” would result, the government cannot detain someone as a material witness.

Abdullah al-Kidd, a Kansas-born convert to Islam, was but one of the countless victims of this practice. In early 2003, the government filed an application to detain Mr. al-Kidd on the grounds that he had information material to the prosecution of Sami Omar Al-Hussayen, who was charged with making false statements on his visa application—this despite the fact they had no intention of calling him to testify.

The application asserted that al-Kidd had information “crucial” to the prosecution. What sort of information? How did he acquire it? How was it relevant to the prosecution? The affidavit does not say. (Ironically, due to the Court’s decision in Ashcroft v. Iqbal—another decision slamming the courthouse doors in the face of victims of the post 9/11 crackdown—if a victim of torture files suit on the basis of thinly supported assertions, the courts are obligated to toss the suit. So, under the current law, the government can imprison an innocent person based on naked assertions, but a victim of torture cannot even file a lawsuit without hard facts to rely upon).

And exactly why couldn’t the government obtain this mysterious information from al-Kidd through means short of locking him up? According to the affidavit, the answer is that al-Kidd had purchased a one-way, first-class ticket to Saudi Arabia, where he couldn’t be subpoenaed. But this was a lie. Al-Kidd bought a round-trip ticket, coach-class. Perhaps more important than what the affidavit misrepresented was what it omitted: that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him.

Once al-Kidd was picked up, he was treated as a common criminal: he was kept in a high-security prison inside a cell that was lit 24-hours a day; he was shackled at the arms, waste, and legs; he was subject to strip-searches and body-cavity searches. When released, he was subject to onerous conditions like a travel ban, consent to daily home inspections, and regular reporting to a parole officer for 15 months. The FBI director mistakenly, but very publicly, identified him as a major terrorist threat. By the time his ordeal was over, he had been fired from his job, lost a scholarship to study Arabic in Saudi Arabia, and was separated from his wife.

Al-Kidd was never called to testify. (Incidentally, al-Husayen—whose case formed the pretext for Al-Kidd’s detention—was later acquitted.)

So, to recap: government officials, carrying out John Ashcroft’s orders, finagled a material witness from a magistrate judge through false pretenses; detained someone they had no intention of calling as a witness; subjected him to daily humiliations; publicly slandered him; and cost him his wife and job. The Ninth Circuit decried this miscarriage of justice as “repugnant to the Constitution” and let the suit against John Ashcroft proceed. True to form, the Supreme Court reversed the Ninth Circuit.

All eight of the Court’s voting members (Justice Kagan did not participate) agreed that Ashcroft could assert qualified immunity against al-Kidd’s claim. The doctrine of qualified immunity says that officials cannot be held liable unless they violated law that was “clearly established” at the time of the offending action. The rationale behind this doctrine is that law is constantly changing and if officials could be held liable for overstepping constitutional boundaries that were fuzzy at the time of action, officials would become spend too much time fretting over lawsuits to effectively govern. Officials, the doctrine recognizes, need breathing space.

And at the time, according to the Court, there was no “clearly established” constitutional rule that barred the Attorney General from directing his subordinates to use the material witness law as a pre-text to round up people without probable cause. Five members of the Court went further, holding that the warrant was validly obtained and concluding: “an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.”

True, there was no case directly on point, but did the Attorney General need a case to understand that it is unlawful to order your subordinates to misuse existing law to skirt the requirements of the Fourth Amendment? Qualified immunity is based on notice: we don’t want officials being taken by surprise when a court finds their conduct unconstitutional. Are we really to believe that John Ashcroft would have been shocked to discover that the Constitution forbids the deliberate and systematic misuse of a law designed to secure the testimony of an uncooperative witness to arrest an individual that the government had no intention of using as a witness at all?

The Court not only answers these questions in the affirmative—it disclaimed the existence of a Fourth Amendment violation at all. To call this a “validly obtained warrant” blinks reality. The arrest warrant was issued in accordance with a law that explicitly prohibits arrest warrants where detention is unnecessary to secure testimony (and by implication, where testimony is not sought). And how did the government get this warrant? By falsely claiming that it sought al-Kidd’s testimony and by falsely overstating the difficulty of obtaining it without detention.

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